Information Services/Information Management concerns how your organization manages information internally on a daily, on-going basis. Among other things, this includes:

• Policies and procedures on saving, organizing, and retaining electronic information
• Policies and procedures on data backup and/or archiving
• Policies and procedures on electronic records destruction / purging
• Managing metadata: email, file system, and document metadata (embedded metadata)

Identification involves determining the location, scope, and scale of potentially discoverable ESI (Electronically Stored Information). Among other things, this includes:

• Determining key players, including non-parties, who may have potentially discoverable records relevant to a particular litigation, within set time frames
• Locating and securing information from hard drives (work and home computers, external drives, copy/fax machines, etc.), portable storage devices (thumb drives, cell phones, PDAs, etc.), on-line mail servers (Yahoo, Google, etc.), social networking sites (Facebook, Twitter, LinkedIn, etc.), that may contain relevant information
• Isolating email messages and attachments, word processing documents, spreadsheets, databases, pictures, audio / video files, etc. for preservation and processing
• Deciding whether digital forensics is needed to capture deleted data, to prevent spoliation, and to preserve the integrity of evidence

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Preservation requires ensuring potentially relevant records are not altered or destroyed during the pendency of a lawsuit. The duty to preserve starts at the time the filing of a lawsuit is “reasonably foreseeable,” and can require coordination between legal and technological fields. Issues involved in preservation include:

• Balancing the cost of preservation with efficient, routine operation of the company
• Educating and monitoring all key players and staff regarding “Do’s & Do Nots” of records management while a litigation hold is in place
• Clearly defining with opposing counsel what is considered relevant based on facts and legal issues
• Isolating files, servers, and back-up tapes to prevent spoliation
• Determining whether certain routine processes need to be suspended temporarily until collection can be made to prevent spoliation

Collection

Collection of paper and electronic data determined at the identification phase to be potentially relevant should be complete enough to satisfy the potential scope of discovery requests and relevant data based on facts and issues in the case. This will allow for the most efficient processing, review, analysis, and production of data. Issues to be addressed at this stage include:

• Whether a forensic, “mirror image” of the media source(s) needs to be made
• Whether only “active” data needs to be collected, or deleted data must also be included
• Efficient management of data collection from all identified sources to mitigate costs

Processing normalizes data and reduces the volume of ESI to be reviewed for privilege, responsiveness, and further analysis in connection with factual and legal issues in a given case. Although some processing occurs before the analysis phase, inevitably additional processing will occur after the analysis phase when determinations have been made as to which populations may be responsive or likely to yield responsive data. At this initial processing stage, it is important to consider (or focus more closely on), among other things:

• The type of review tool that will be used. This may influence how data is processed and the format data takes
• The form of production. Although this may have been agreed upon by counsel prior to this stage, the types or volume of data may influence whether parties take on the cost of converting documents to a consistent image format (e.g., TIF/PDF) with load files for metadata; produce documents in native format; or engage in a quasi-native production consisting of some images and some native documents
• Quality control. This is necessary throughout all stages of the EDRM, and automated and manual/personal quality control checks play an important role in ensuring document review and production is accurate and judicious

Production means providing copies of relevant records to opposing counsel in an agreed-upon format for use during discovery and at trial. Depending on the volume of data to be produced, production may be made in hard copy or electronic format.

• There are pros and cons to using the various types/classes of production (native, near-native, near-paper, and paper)
• Various forms of production include: files, searchable text, fielded data, load files, other metadata, etc.
• Form of production should be agreed upon with opposing counsel early in litigation (Rule 26(f)). Parties should weigh the pros and cons of native production or image documents with load files, for example.
• In cases with voluminous ESI, consider having records of key custodians produced first and prioritize further production on a rolling basis
• Consider that some data is excluded when records are converted to images, e.g., Excel formulas and hidden cells, blind carbon recipients and “date read” are not available when spreadsheets and emails are converted to image form; PowerPoint notes may not automatically be converted and animations may not work; comments and/or track-changes may or may not appear in converted Word documents

Presentation is key to convincing a judge or jury that you should win. Efficient communication of your facts and arguments using a combination of high-tech and low-tech methods should tell your client’s story clearly and simply. Electronically present evidence at summary judgment hearings to help the judge focus on key excerpts or use litigation presentation software at client, expert, and witness preparation meetings. For trial, you may want (among other things):

• Exhibit boards / enlargements
• Notebooks of exhibits for witnesses, admission, and the judge
• A complete database of all Plaintiff and Defendant exhibits, depositions and exhibits for use and presentation at trial